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The Right Prescription
Of Severability and Sins of Omission
Could ObamaCare fall victim to an oversight by a congressional aide? Judge Henry Hudson might tell us as much before the month is over.
On October 18, attorneys representing the Commonwealth of Virginia and the Obama Justice Department squared off before U.S. District Court Judge Henry Hudson to debate the constitutionality of the Patient Protection and Affordability Act (PPACA). Although the primary point at issue was the individual mandate, ObamaCare’s requirement that all Americans buy health insurance, the lawyers spent a significant portion of their limited time arguing about a clause that doesn’t actually appear in the new law. Few of the journalists present in the courtroom reported on what must have seemed to them an arcane digression, but this was no sideshow. It involved the failure of the Democrats to include a severability clause in PPACA, an omission that could, in theory, bring the whole corrupt edifice crashing down.
If you are like most people, the term “severability” probably doesn’t come up much in your water cooler conversations. But the concept does play a role in your life. As Ken Klukowski of the American Civil Rights Union puts it, “If you have a lease, or an employment contract, or service agreement, or even a product warranty, you’re likely to find some sort of severability clause toward the end of it.” The object of such language is to ensure that, if some part of a legal instrument is declared invalid in court, the remaining provisions stay in force. For obvious reasons, severability clauses are routinely inserted in most important pieces of legislation. But in their headlong rush to ram “reform” down America’s throat, the Democrats neglected to include one in ObamaCare.
Predictably, there has been much speculation concerning how they managed to commit such a blunder. One congressional aide told the New York Times it was just an “oversight,” a plausible explanation considering the haste and procedural skullduggery with which this particular piece of sausage was produced. Like everything else that happens in Washington, however, the episode has generated a variety of conspiracy theories. The most popular of these among conservative conspiracy buffs posits that the clause was deliberately left out to protect the mandate. In other words, the subtle schemers who wrote the bill knew that few judges would be willing to declare the mandate unconstitutional if that decision also required them to strike down the entire law. Progressive paranoiacs, on the other hand, suspect a dark plot by the perfidious Blue Dogs.
Whether the failure to include a severability clause in PPACA was a simple screw-up or a Machiavellian plot, it was an omission whose significance was not lost on Virginia Attorney General Ken Cuccinelli. Unlike the congressional Democrats who voted on the legislation, Cuccinelli and his staff carefully read PPACA. And, when Commonwealth of Virginia v. Sebelius was filed in the U.S. District Court, the lawsuit explicitly pointed out that ObamaCare “contains no severability provision.” This allowed Cuccinelli to argue that, if Judge Hudson agrees with the Commonwealth’s contention that the individual mandate is unconstitutional, he is required to strike down the entire law: “Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”
At first, like the journalists who attended the October hearing, the Obama administration didn’t seem to grasp the significance of the severability issue. Even after the Virgina lawsuit highlighted the potentially disastrous omission, the Justice Department still failed to take it seriously. In its motion to have the Old Dominion’s case dismissed, the administration’s defense of the mandate played right into Cuccinelli’s hands by declaring that ObamaCare is unworkable without it. As Virginia’s October filing with the Court phrased it, “Secretary [Sebelius] herself has described the mandate and penalty as the ‘linchpin’ of PPACA’s insurance reforms.” The defenders of PPACA explicitly admitted that, even as a purely practical matter, the mandate isn’t severable from the rest of the law.
By October 18, however, the administration had stopped imbibing its own talking points about Virginia’s “frivolous lawsuit” and decided to address the severability argument head on. Thus, when Justice Department lawyer Ian H. Gershengorn and Virginia Solicitor General E. Duncan Getchell faced off before Judge Hudson, the two had a lively exchange over the issue. But the administration still doesn’t seem particularly sanguine about the impression Gershengorn’s arguments made on the judge. Hudson has promised to make his decision by the end of this month, and the White House is apparently expecting bad news: “[Administration officials] acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law.”
This is probably why the White House has made so much of recent rulings by U.S. District Judges George Steeh and Norman Moon, Clinton appointees who dismissed relatively inconsequential anti-PPACA lawsuits. The administration knows, of course, that the Virginia case presents a far more serious threat than either of these cases. It has already survived a motion to dismiss and it was heard in the U.S. District Court for the Eastern District of Virginia, the famous “rocket docket” from which important cases are expeditiously launched to the U.S. Court of Appeals and beyond. As Judge Hudson put it during the October hearing, “[T]his is only one brief stop on the way to the United States Supreme Court.” Nonetheless, if he rules in favor of Virginia, the administration will no doubt claim it is ahead two-to-one.
The jumpiness of the White House notwithstanding, it is not a given that Judge Hudson will strike down the entire law. He has shown skepticism about the mandate, but that issue is relatively straightforward compared to the severability question. On the mandate, he can follow the example of Judges Steeh and Moon, who held that the decision not to engage in economic activity somehow constitutes “commerce” as the word is used in the Constitution, or he can rule that such reasoning does too much violence to the intent of the founders. On severability, Hudson’s choices are more numerous and the legal precedents are less auspicious. In fact, the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place.
To a layman, such an obscure ruling may seem a dubious basis upon which to decide the fate of a nanny-state abomination like ObamaCare. But, to quote Jonathan Swift, “It is a maxim among these lawyers, that whatever hath been done before, may legally be done again.” Thus, it doesn’t necessarily matter that the preservation of PPACA would defy “common justice and the general reason of mankind,” or that Getchell bested Gershengorn in October’s arcane dust-up. The Supreme Court has already provided Judge Hudson with an “out” on the absent severability clause. Will he take it? We’ll know in three weeks.
About the Author
David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.
Letter to the Editor View all comments (60) | Leave a comment
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coal carrier| 12.7.10 @ 7:39AM
The lefties will come out of the woodwork on this one.
Brian Mc| 12.7.10 @ 8:04AM
...and their 'compassion' will win the day, coal carrier. After all, they only do what they do because they care. But, if they truly cared would they not legislate demands that fostered self-reliance? Due to this oversight on their part I consider everything they foment to be rooted in evil.
Black Orpheus| 12.7.10 @ 10:49AM
No, no, no! They do what they do because they 'love'. They see things we can't see; they know things we cannot know. We cannot fathom their depth nor envision their heights. They are up there and we down here. Dare we question such wisdom and omniscience?
Ned| 12.7.10 @ 12:19PM
They're frickin' stupid. In a discussion with a neighbor about health care recently, her entire arguement was, and I quote, "Shut up and listen to me."
Robin| 12.7.10 @ 9:42PM
I have attempted to reason with the drones and I get the same comment. They really believe obismalcare will be totally free and cannot see the forest for the trees. This administration is about as duplicitous and corrupt as one can be. They want total power and control to create their eutopia - a nanny state. As George S above noted, they want to bankrupt everything so we'll all have to go running to them for anything and everything we need to exist.
misterbee| 12.9.10 @ 2:42PM
My co-workers are also convinced that their health care will be completely "free". I point them to the legal debacle currently going on in Massachusetts over people dropping their "RomneyCare" and being sued by Mass. As law enforcement knows, in order to take a "sucker" or a "mark", you play on their greed and convince them they are going to get something for nothing. These "con games" work best on the greedy and feeble-minded.
Broccoli| 12.7.10 @ 2:35PM
I hope sarcasm was your real intention...
WRTolkas| 12.7.10 @ 8:03AM
No conspiracy theory here - as the author stated, as they were ramming this monstrosity down our throats, they just forgot. No conspiracy, just stupid. In this case, thank G_d for stupid.
post*tenebras*lux| 12.7.10 @ 8:51AM
It is possible to bribe anyone as long as you know how much or what to bribe him or her with. Every man has his price. Will this be so in this judge's case as it has been in a lot of Hussain's cronies?
Shamus| 12.7.10 @ 9:08AM
Previously, the Supreme Court has ruled that you can own a slave but not a home.
(See the Dred Scott and Kelo cases.)
PJ| 12.7.10 @ 9:21AM
I was ready to scream, "Yahoo! No Obamacare!" Then I read the last 2 paragraphs.
I did not read the Sarbanes-Oxley decision so I will assume that Mr Catron's interpretation is correct for now.
That aside, if this idea of "severability clause" is legal dogma, & the Supreme Court ignored it when ruling on Sarbanes-Oxley, then I have very little hope. Conservative court, liberal court---- it doesn't make any difference. The Supreme Court will decide based on the political "wind" of the day.
Propaganda machines---- Start your engines!!
Steve A| 12.7.10 @ 9:34AM
My personal favorite government argument in this case is how they are forced to assert that an American Citizen, by electing to not purchase health insurance, is engaging in "commerce." Without this argument, the mandate to purchase is null & void & the whole thing collapses.
So, to extend this logic forward, if I elect not to pay for a hooker, am I now engaged in prostitution?? Soliciting the reply of Obama disciples here...........I will patiently wait for your illuminating & insightful commentary.
Broccoli| 12.7.10 @ 2:44PM
I hope you're not holding your breath, the majority of liberals aren't capable of or interested in "illuminating" or "insightful" commentary...
Don| 12.7.10 @ 3:59PM
Only if she crosses a state line.
YeloStalyn| 12.7.10 @ 9:35AM
If only I could remember where I read this...
Jefferson once said, in reference to Judges, due to a failure of the Founders, having too much power that should they ever rule obviously counter to the Constitution the people should simply and roundly ignore them.
Kind of like Jackson, I guess, in his attitude towards the SCOTUS during his presidency.
mames| 12.7.10 @ 11:06AM
With the clarity of the Constitution and the absence of the clause the judge must declare the whole unconstitutional. If he does not then he has been bribed in some manner if only by his own adherence to REX (JUDGE) EST LEX. What are the odds that this judge is any different than the rest of the Feds? Congressional action must stop this abuse of power, or guns and pitchforks.
A. C. Santore| 12.7.10 @ 11:16AM
Two points:
1. When looking for an explanation, choose the simplest one.
2. Judges routinely decide first on the result they want to reach, then find the legal justification for it [and, very sadly, sometimes create one out of the whole cloth].
I expect the latter in this case.
buckeyeman| 12.7.10 @ 11:20AM
Our doom was sealed in 1942 with the ruling in Wickard v. Filburn wherein the USSC ruled that an Ohio farmer growing wheat on his own land to feed to his own pigs fell under the jurisdiction of the Agricultural Adjustment act of 1938. The Court "reasoned" that by growing his own wheat for his own use he was able to avoid purchasing wheat (possibly) from across state lines and thus "indirectly" affected interstate commerce. This insane, tortured reasoning has been upheld on numerous occasions and effectively ended our republican form of government. Just wait and see. The Court will uphold Obabacare. Just wait and see.
A. C. Santore| 12.7.10 @ 11:28AM
See? A perfect example of what I wrote above.
Dougmatt| 12.9.10 @ 3:42PM
Re: SCOTUS decision on Wickard v. Filburn I suppose the other side of the coin, failure to plant the amount allowed, would have generated censure as well. The absence of the centrally-planned amount would also have affected interstate commerce. Thus, farmer Filburn would have been remiss here also.
Perhaps one hope we have is U.S. v. Lopez, in which SCOTUS drew a line in the sand, saying the Congress had expanded beyond its limits.
My own hope is that The Court will find that Congress had not exhausted its universe of "remedies" to the health care "emergency" before mandating the purchase of health insurance. The fact, stipluated to by Congress, still leaves out some 15 million people who are not, for whatever reason, subject to the mandate. I would claim relief under the Equal Protection Clause.
Oldefarte| 12.7.10 @ 11:36AM
This absence of clause will probably be ignored for two reasons: Sotomayor and Kagan!!!!!!!!!!!!!!!
Broccoli| 12.7.10 @ 3:27PM
Yet another repercussion of voting in the wrong sorts...
chris haynes| 12.7.10 @ 11:49AM
There are three absurd premises here.
1 That if any part of a law is in conflict with the constitutional, unrelated parts are too. Would the purchase of new rifles be unconstitional, if the annual defense bill prohibited soldiers under 30 years of age from voting?
2 That the administration "played right into Cuccinelli's hands by declaring that ObamaCare is unworkable without it." No, they just stated an obvious fact. How does unworkable mean unconstituional? If its financially unworkable, that's for Congress to worry about.
3. That the American judicary is worthy of any respect. They gave us legal abortion 55,000,000. The greatest holocaust in history. We're supposed to get worked up over severance clauses and interstate commerce?
YeloStalyn| 12.7.10 @ 12:38PM
Re: #1
Yes... if a part of a bill is deemed unConstitutional AND there is no severance clause, the entire bill is therefore unConstitutional. It's like if you have a product and a part is faulty. Some places (those with severance clauses so to speak) will replace that part. Other places (for this example, places w/o one) will take the entire product back.
Re: #2
Yes, they did play into their hands by admiting that if the mandate were removed the whole of the bill would be pointless. That's the very goal of arguing the severance point. The Judge, as the latter part of the article pointed out, was given "judical" outs (although they are, if you want to get down to it, unConstitional outs themselves). The out being striking down the mandate but not enforcing the fact that there is no severance clause. The Feds argued that they do not want that outcome because it would be pointless to have the bill w/o the mandate. That would, in effect, be telling the judge that they want all or none. And to get one part disqualifed would therefore leave them, if the judge follows the law, none!
Re: #3
Here you are right about respect and the judiciary. However, yes, you ought to get worked up over interstate commerce. While abortion is the worst thing they've done for one of our endowments (life), interstate commerce is the worst thing to happen to one of our other endowments (liberty). Abortion effects those not yet born. Interstate commerce effects everyone else.
Marin Conservative| 12.7.10 @ 2:46PM
YeloStalyn excellent comment.
Another issue not mentioned by this judge but by the Florida judge was that the 2,000 page law passed did not define what it was but only an outline of a law that required unelected commissions to write another 4,000 pages that are not reviewed and approved by Congress or the people. Laws must be clearly defined so that people know what Congress is passing not outlines of laws that are written in private by unelected commissions.
JR| 12.9.10 @ 8:40PM
Best comment yet! I've heard this ONCE before in the news, but will now send the info around....
Signed,
Fellow Conservative
Broccoli| 12.7.10 @ 3:39PM
Re: #1
In laymans terms if you have a bag of lettuce with some soggy and brown wilted leaves you throw away the whole bag...
James Brown| 12.7.10 @ 12:23PM
Chris: A silly as this appears, yes, if one part of a law is determined unconstitutional without severability the whole law is out.
Read a warrentee on your tooth paste (likely not there) but if it were and had more then one clause there will be a severability clause. It is law 101 in any law school. It is the reason (or rather and example) why two parties need a lawyer to draw up th simplest agreement (contract).
George S| 12.7.10 @ 12:51PM
I cannot see how something as fundamental as a severability clause can be forgotten. I think the purpose of its omission is to give the government an out during SCOTUS hearings. If the mandate is presented to SCOTUS as a tax that is levied uniformly and without regard to census or enumeration, it becomes an income tax; well within the powers of the Congress to raise revenue for the general welfare of the United States. The mandate, can subsequently be argued as a "tax break", i.e., those who purchase insurance get a tax deduction equivalent to the mandate. This will force the Court to cede to Congress' power. The rest of the bill is now attached to a revenue raising Act instead of a function of the Commerce Clause.
That's how FDR got social security through.
Wayne | 12.7.10 @ 2:36PM
Isn't this mandate a requirement whether one has an income or not?
Steve A| 12.7.10 @ 2:40PM
Wayne, Hahahaaaaaa. That's funny. Sure its a mandate. You just do not have to pay for it, someone else does.
Marin Conservative| 12.7.10 @ 2:54PM
You got it, just wait. Congress will just vote a tax break for the poor for the amount of the health insurance essentially making medical care free for the 16 million that are not covered.
Broccoli| 12.7.10 @ 3:48PM
Just take the money from stimulous and buy a $300 mo. insurance policy for the 16 mil without. This should insure them for the next 2400 years...
George S| 12.7.10 @ 3:05PM
No, because if you have no income you are either not declaring it or are broke. If it's the latter, you're on Medicaid anyway so you are not mandated to purchase anything.
If you cannot afford insurance, you will be subsidized. This is the socialist trigger, what the Democrats are relying upon to destroy our republic. The penalties (ahem, taxes) will incrementally become unbearable... enter the pubic option.
The whole point is to push you into the government's hands as the only course the health care bill can go is bankrupting the country. But how it is presented to a Supreme Court has nothing to do with reality or intent -- it is how it's argued that counts. And right now, the commerce clause is the weakest argument or else there would have been a severability clause in the law in order to keep control over the insurance industry and make them bend by regulation.
Marin Conservative| 12.7.10 @ 2:51PM
Judge in the Florida case did not allow the government lawyers to argue that the penalty was really a tax. He said they passed it in Congress as a penalty and could not change it without Congress acting. In essence the administration can't rewrite laws passed by Congress. If that is allowed then we have one branch of government with no checks and balances. This cuts off the tax argument and would require Congress to pass an amended law, no chance with the change in the House and Senate.
YeloStalyn| 12.7.10 @ 1:44PM
True... but this judge has stated that it is not wise (he has not yet made a legal ruling on this, but could) to argue that something is black in order to garner support from the governed for the measure, then later say that it is in fact white (something the public would NOT have supported) in court in order to defend it.
Intelligent Design| 12.7.10 @ 2:33PM
Interesting stuff, but perhaps the answer lies with us ordinary citizens.
Herr Dictator Obama has already undermined the rule of law by exempting about 100 companies from complying with certain aspects of PPACA. The law doesn't mean what it says, apparently. So, let's just emulate the millions of illegal immigrants and choose to ignore the law. Let's pick and choose which laws to obey, and which to ignore. Which raises another question: Will illegals be exempt from the mandate? :)
sorosbaby| 12.7.10 @ 3:40PM
And not only are 100+ companies exempt from Obamacare, I was just told that the SEIU just dropped medical care for 30, 000 low wage home care attendents in NYC. The union cited the heavy costs they are likely to assume under the new health care law. Guess what though - the SEIU is on the long list of those EXEMPT from the plan. Guess who hates poor people and children now!
somnolence| 12.7.10 @ 4:21PM
The penalties, sorry, will never be as high as the premiums. Therefore, I will do without.
somnolence| 12.7.10 @ 4:30PM
By the way, incremental withdrawals from savings accounts is technically not income. I'm going to enjoy this run and dodge game as long as I can regardless of how the USSC eventually rules.
Redstateboy| 12.7.10 @ 5:08PM
I called the VA. AG's ofc. to point out that the 10% Tanning Bed Tax is a Racist tax. Laugh????
Tell me then.. how can Congress pass a tax that {inordinately} taxes one race of Americans above other races?
Dan Smith| 12.7.10 @ 7:26PM
Let's read this carefully: Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid."
If there is no discretion at all in striking down the entire law if one part is unconstitutional, if there is no severability clause, why the need to characterize the mandate as an "essential" part?
I haven't researched severability, but this makes me a little suspicious.
YeloStalyn| 12.8.10 @ 9:22AM
Why would Holder argue it as "essential"? Because he's an idiot.
I thought that was obvious.
Occam's Tool| 12.7.10 @ 7:26PM
"Let's see what happens." Emperor Gregor of Barrayar.
David Dennis | 12.7.10 @ 7:45PM
The severability clause may not have existed because the individual mandate is necessary to require coverage of pre-existing conditions, unless you want to instantly bankrupt insurance companies.
I think the lack of a severability clause was a deliberate recognition of that fact, and in that case the law would have to be thrown out if the individual mandate was disallowed.
D
Dan Smith| 12.7.10 @ 8:05PM
David, do you think anyone bothered to do actuarial calculations to determine if the penalty for non-compliance for healthy young people would compensate for their non-inclusion as full paying mandated members? I doubt it.
Nite| 12.7.10 @ 9:42PM
I wonder where some of Obamas people received their education? Cracker Jack boxes?
Osamas Pajamas| 12.8.10 @ 1:46AM
Remember that the Healthcare Hijacking law depends on the "initiation" of deadly force or the threat of it.
Government-employed gunmen --- uniformed and plainclothes assassins --- intend to enforce the dictatorship of Barak Hushpuppy OhBummer and the parliamentary despotism of the Democrats.
In order to coerce and extort compliance, Uncle Scam is threatening the murder of anyone who disobeys the commands within the Healthcare Hijacking's text, who also defends themselves with force when attacked by force or the threat of it.
Because we all have the right of self-defense --- including, nay, ESPECIALLY --- against a dictatorial government, I advocate that the intended victims of the Healthcare Hijacking law arm themselves with weapons of deadly force, and that if they are attacked by government employees with deadly force or threatened by government employees with deadly force --- by word or by deed --- that they kill those government employees.
Again, OhBummer and Uncle-Scam-at-large intend to coerce and extort obedience under the threat of deadly force. I do "not" advocate the use of deadly defensive force against OhBummer --- because he does not have the balls to try "by his own hand" to force me to obey him. He is a pussy with the hired guns to do the maiming and killing for him, by his instruction and on his behalf.
I do advocate the use of deadly force in self-defense against any agent of government who initiates or threatens to initiate force in order to coerce and extort obedience with the Healthcare Hijacking law.
It is not acceptable for the enforcers to say that they are just doing their jobs, or that they are only obeying orders, or that they don't make the laws, that they just enforce them.
They are not drafted or conscripted into their jobs and they may quit them at any time. There is no duty for a government agent to perform immoral acts.
This is what the Nuremburg Nazi trials were all about --- personal responsibility of government agents, above and beyond the law, and above and beyond the orders issued by the dictators.
somnolence| 12.8.10 @ 10:12AM
The Nuremberg Trials might not have been necessary if all the Jewish communities and households had met the SS agents at the door with deadly, execution style force. As it was most of the weapons had already been seized. Assuredly, that will not be the case here in the U.S. A.
tombaty| 12.8.10 @ 2:34PM
This is actually a question..your comments are welcomed.
There are now, the last I looked, 222 waviers given out to various unions and business group which will affect over 1 and a half million people. My questions is..... under the 5th and 14th amendments to the Constitution which implies an "equal protection clause". This stipulates that all laws shall apply with equal force to all. So how does this wavier stuff pass the muster of the "equal protection clause"???????? This clause has been enforced over the years by the Scotus and in fact was the basis for much of the civil rights legislation in the 1960's. Just asking.
regards Tom
Ike| 12.9.10 @ 8:03PM
Feds lose anyway. Why? The Act contains a tax even though legislative history and public talk by Administration said it was a fine or penalty, but in this or one of the other identical suits, the government had said that it is a tax. Tax measures can only originate in the House. This Act originated in the Senate, as the House adopted without amendment the Senate version. Constitution plainly says all revenue measures have to start in the House. Bang!!